Citation Nr: 9817308
Decision Date: 06/04/98 Archive Date: 06/15/98
DOCKET NO. 94-36 600 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
1. Entitlement to service connection for residuals of a
lumbar laminectomy and excision of meningocele, as secondary
to a service-connected right knee disability.
2. Entitlement to service connection for a left knee
disability, as secondary to a service-connected right knee
disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
L. Helinski, Associate Counsel
INTRODUCTION
The veteran had active service from November 1973 to April
1977.
This matter comes before the Board of Veterans’ Appeals (BVA
or Board) on appeal from an October 1993 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in St. Louis, Missouri, which denied the benefits sought on
appeal.
The Board notes that this case was previously before the
Board and remanded in November 1996 for further development.
The requested development having been completed, the case is
now ready for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that he currently has a
lumbar spine disability and a left knee disability as
secondary to his service-connected right knee disability.
Therefore, a favorable determination is requested.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence supports claims
for service connection for residuals of a lumbar laminectomy
and excision of meningocele, and for a left knee disability,
both as secondary to a service-connected right knee
disability.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of this appeal has been obtained by the RO.
2. In an October 1981 rating decision, the veteran was
granted service connection for postoperative meniscectomy,
right knee, with recurrent subluxation, recurvatum,
chondromalacia, and traumatic arthritis.
3. Following separation from service, there is lay evidence
that sometime in 1991 the veteran fell down a flight of
stairs, and there is competent medical evidence that the
veteran injured his back as a result of that fall, and that
his right knee disability proximately caused the fall.
4. There is competent medical evidence of record that the
veteran’s right knee disability proximately caused a left
knee disability.
CONCLUSIONS OF LAW
1. Residuals of a lumbar laminectomy and excision of
meningocele were proximately due to a service-connected right
knee disability. 38 U.S.C.A. §§ 1110, 5107 (West 1991);
38 C.F.R. §§ 3.303, 3.310(a) (1997).
2. A left knee disorder was proximately due to a service-
connected right knee disability. 38 U.S.C.A. §§ 1110, 5017
(West 1991); 38 C.F.R. §§ 3.303, 3.310(a) (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As a preliminary matter, the Board notes that the veteran was
previously denied service connection for a left knee disorder
in an October 1981 rating decision, which was not appealed
and became final. See 38 U.S.C.A. § 7105(b)-(c) (West 1991);
38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (1997). A final
decision cannot be reopened unless new and material evidence
is presented with respect to the claim disallowed.
38 U.S.C.A. §§ 5108, 7104(b); 38 C.F.R. §§ 3.156, 3.160.
However, based on the veteran’s VA Form 9, received in April
1997, as well as his testimony in a May 1997 hearing, it is
apparent that the veteran is not currently seeking direct
service connection for either a left knee disorder or a
lumbar spine disorder; rather, the veteran is claiming that
he currently has a left knee disorder and a lumbar spine
disorder, which developed as secondary to his service-
connected right knee disorder. Therefore, the Board will
limit its analysis in this appeal to principles of secondary
service connection.
Service connection may be granted for diseases or injuries
incurred or aggravated while in active service. 38 U.S.C.A.
§ 1110; 38 C.F.R. § 3.303. Additionally, service connection
may be granted for disabilities that are proximately due to a
service-connected disease or injury. 38 C.F.R. § 3.310(a).
Furthermore, any additional disability resulting from the
aggravation of a non-service connected condition by a
service-connected condition is also compensable under
38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448
(1995) (en banc).
The Board finds that the veteran’s claims for service
connection for residuals of a lumbar laminectomy and excision
of meningocele, and for a left knee disability, both as
secondary to a service-connected right knee disability, are
“well grounded” within the meaning of 38 U.S.C.A.
§ 5107(a). See Murphy v. Derwinski, 1 Vet. App. 78, 81
(1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
That is, the Board finds that the veteran has presented
claims that are plausible when his contentions and the
evidence of record are viewed in the light most favorable to
his claims. The Board also is satisfied that all the facts
relevant to these claims have been properly and sufficiently
developed.
A review of the record reveals that in an October 1981 rating
decision, the veteran was granted service connection for
postoperative meniscectomy, right knee, with recurrent
subluxation, recurvatum, chondromalacia, and traumatic
arthritis; a 30 percent evaluation was assigned, effective
from October 1980. Service medical records indicate that in
December 1973, the veteran was treated with an ace wrap for
his left knee and right ankle. Otherwise, his service
medical records, including his March 1977 separation
examination report, do not document treatment, complaints, or
a diagnosis of disorders of the lumbar spine or the left
knee.
In July 1993, the RO received the veteran’s claim for service
connection for a lower back disorder and a left knee
disorder, as secondary to his service-connected right knee
disability. Essentially, the veteran contends that his right
knee disability caused him to fall and injure his lower back
sometime in 1991. He also contends that he has had to
compensate for his right knee disability by placing more
weight on his left knee, which has caused his current left
knee disorder.
Reviewing the medical evidence of record, the Board notes in
a March 1977 service separation examination report, the
veteran’s right knee was characterized as a “trick” knee.
In a July 1981 VA medical statement, it was noted that the
veteran was wearing knee braces on both his knees. In a
December 1986 VA examination report, the veteran was
diagnosed with right knee status post medial meniscectomy,
genu recurvatum, with a history of laterally subluxing of the
patella.
In October 1991, private medical records from the Nalle
Clinic reveal that the veteran was seen for spinal
discomfort, after having fallen in St. Paul, Minnesota five
days prior. A May 1993 private medical report from the
Clarke Orthopedic Clinic reveals that the veteran was seen
with complaints of severe pain in his back, radiating to the
right lower extremity. In a December 1994 VA examination
report, the veteran complained of a stabbing sharp pain in
his right knee. The examiner noted that the veteran limped
and walked with two crutches.
In November 1994 and May 1997, the veteran presented
testimony before a hearing officer. In summary, the veteran
testified that over the years, his right knee had “given
way” hundreds of times, causing him to fall. He stated that
it was not unusual for him to fall several times in a week.
The veteran’s wife testified that she had to help carry the
veteran often, to prevent him from falling. In regard to the
veteran’s back injury, he stated that several years ago he
was finishing a job in Minnesota, and began walking down a
flight of stairs that had about 30 stairs, when a sharp pain
in his right knee caused him to crumple; he stated that he
reached for the banister, flipped around, and struck his back
on the metal railing. Following that incident, the veteran
reported that he was sent home, and sometime later, underwent
surgery on his spine. With regard to his left knee, the
veteran indicated that about six months following the surgery
on his right knee, he began experiencing problems in his left
knee, which worsened over time. He stated that he was
diagnosed as having chondromalacia in the left knee.
A March 1995 private medical statement from Michael S.
Clarke, M.D., indicates that the veteran’s left knee disorder
was partly due to the paralysis that the veteran had in his
right lower extremity, as well as the excessive use of the
left lower extremity.
In January 1997, the veteran underwent a VA examination for
his spine and was diagnosed with chronic low back pain
secondary to epidural scar status post spine surgery for
diskectomy. The examiner opined that the veteran’s spine
disability was not caused by the veteran’s knee disabilities;
nor did the veteran’s knee disabilities aggravate the
veteran’s spine disability. The veteran also underwent a VA
examination for his knees, and was diagnosed with left knee
pain secondary to mild degenerative joint disease with
congenital recurvatum of the knee. The examiner opined that
the right knee disability currently had no effect, and has
never had an effect, on the veteran’s left knee disability,
since they were both due to a congenital laxity and
recurvatum and subsequent deconditioning of the lower
extremities.
In January 1998, this case was before the Board, at which
time the Board referred the case for a medical expert
opinion, pursuant to 38 U.S.C.A. §§ 5107(a), 7109 (West 1991)
and 38 C.F.R. § 20.901 (1997). The Board requested answers
to specific questions regarding, in summary, whether it is at
least as likely than not that the veteran’s right knee
disability caused the veteran to fall down stairs, and, if
so, whether it is at least as likely as not that such a fall
led to the veteran’s back disorder. Further, the Board
requested an opinion as to whether it was at least as likely
as not that the veteran’s right knee disability proximately
caused him to develop a left knee disorder.
The veteran received a response dated in April 1998, from a
VA medical doctor working in the orthopedic section of the VA
medical center in Cleveland. After a thorough review of the
veteran’s claims file, the doctor opined that “it is at
least as likely as not that the veteran’s right knee
disability caused the veteran to fall down a staircase.” He
further opined that “it is at least as likely as not that
the veteran’s current residuals of the lumbar laminectomy and
the excision of the meningocele were proximately due to a
fall down the staircase, which was caused by the right knee
disability.” The doctor indicated that “[t]he fact that
the back pain started at the time of the fall and continued
unabated and required medical care and culminated with the
surgical procedures noted [of record], suggest that there was
proximate cause related to the fall.”
With regard to the veteran’s left knee disability, the doctor
indicated that the record reflected that the veteran had some
laxity of the knee and hyper-extension, which is essentially
congenital in nature. However, the veteran’s right knee
disability contributed to the veteran using his left knee in
such a way that he would put more pressure and force on the
left knee, as a compensatory mechanism. The doctor concluded
that “it is at least as likely as not that the veteran’s
right knee disability proximately caused the veteran to
develop a left knee disorder.”
The Board has thoroughly reviewed the evidence of record, as
summarized above, and the Board concludes that, resolving the
benefit of the doubt in the veteran’s favor, the evidence
supports a claim for service connection for residuals of a
lumbar laminectomy and excision and meningocele, and for a
left knee disability, both as secondary to a service-
connected right knee disability. The April 1998 expert
medical opinion presents strong support for the veteran’s
claims. The Board finds that opinion credible, as the doctor
appears to have reviewed the veteran’s entire claims folder,
as relates to the claimed disabilities. Further, the doctor
provided clear reasoning for his conclusions. The Board
acknowledges the contrary opinions presented in the January
1997 VA examination report; however, the Board finds that
those opinions are outweighed by the evidence of record,
including the March 1995 private medical opinion, the
veteran’s testimony, and the April 1998 expert medical
opinion. In short, the Board concludes that the evidence of
record supports the veteran’s claims, and the appeal is
granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §3.102.
ORDER
Service connection for residuals of a lumbar laminectomy and
excision and meningocele, as secondary to a service-connected
right knee disability, is granted.
Service connection for a left knee disability, as secondary
to a service-connected right knee disability, is granted.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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